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The Unconstitutionality of 'Bulldozer Justice'

The real intentions behind these demolitions are often poorly hidden, with many politicians and police officers openly stating that the drives were conducted to bring speedy justice to those who preempted, participated in, or organised purported violence. 
Demolition underway in Khori Gaon in Haryana's Faridabad. Photo: Twitter/@leenadhankhar

In recent times, the term “bulldozer justice” has come to describe a somewhat recurrent series of events that start with a communal clash, protest, or violence somewhere, and end with the demolition of homes in mostly Muslim neighborhoods under the pretext of zoning regulations. 

The real intentions behind these demolitions are often poorly hidden, with many politicians and police officers openly stating that the drives were conducted to bring speedy justice to those who preempted, participated in, or organised the violence. 

The drive then becomes a way to secure justice – outside the law – for those who are perceived to be the “victims” of the violence and the demolitions are carried out as extrajudicial punishment on those who are perceived to be its “perpetrators”. Who these usual suspects are can be clearly deduced from the sites of these demolition drives as well. 

The conversation on such “demolition drives” took off in 2022 when the North Delhi Municipal Corporation started razing houses in Muslim localities following the communal clashes that shook Delhi last year. 

A more recent phenomenon would be the demolitions carried out in the Muslim majority district of Mewat where houses (mostly belonging to Rohingya Muslims) in Nuh were similarly bulldozed after the communal clashes that took place there. 

Also read: Nuh Demolitions: Residents Say Due Process Flouted, Reject ‘Illegal Establishments’ Claim

While the government has said that “illegal constructions” were the primary reason for the demolitions, the Punjab and Haryana High court called the bluff by openly asking whether such acts were an “exercise of ethnic cleansing”. The court observed in an order, “the issue also arises whether the buildings belonging to a particular community are being brought down under the guise of law-and-order problem and an exercise of ethnic cleansing is being conducted by the State”. 

What the high court was alluding to also becomes relevant when we look at the timing, location and other characteristics of these demolitions. 

Right to adequate housing and due process of law

The jurisprudence on the right to housing is well established under Article 21 of the Indian constitution. The Supreme Court has, multiple times, held the right to adequate housing to be a part of the fundamental right to life under Article 21. The apex court’s judgement in the case of Olga Tellis vs Bombay Municipal Corporation, further reiterates that a person’s right to dignity and livelihood should be kept in mind while serving them with an eviction notice. The person being evicted must be given the opportunity to be heard. They must have the right to explain their situation to the court. 

All evictions must also follow the due process. The top court held in Municipal Corporation of Greater Mumbai & Ors. v M/S Sunbeam High Tech Developers Private Ltd, that all evictions and demolitions must be in conformity with the law and the procedures established by law. The issuance of notice becomes an important part of due process, because it informs the citizen of the situation and allows them to either contest the demolition or gives them reasonable time to look for alternative accommodation.  This right to a show-cause notice was held to be mandatory by a 2010 Delhi high court judgement in the case of Bal Kishan Das vs Municipal Corporation of Delhi.

The courts have gone one step further in ensuring the rights of those evicted in Sudama Singh & Others vs Government of Delhi & Anr where it held that those who have gotten evicted by the authorities must be provided with housing equipped with basic amenities that help protect the citizens right to life and dignity. 

But the reality is that many of those who have faced demolition drives, report being suddenly thrown out of their houses in the middle of the night with their houses or temporary shacks being destroyed along with all their belongings. 

In most cases, residents do not get a show-cause notice informing them of the demolition or if they do, they get it too late. They are not provided with any alternative accommodations and are left homeless as a result. Such instances of instant demolitions are a clear violation of the due process that has been laid down in multiple supreme court judgements and in legislations such as the Delhi Municipal Corporation Act, 1957.

Rule of law

Now let us argue that the demolitions have been carried out with due process. This means that all those whose houses were demolished were served with notices well in advance and were given the right to be heard and provided with alternative accommodation.

Would the inherent problem with these demolition drives cease to exist? The answer is no. The mere act of demolishing “illegal structures” is not in question here. We also need to look at the context around and the sequence of events leading up to these demolitions. 

Medicine supply stores and pathology labs reduced to debris near SHKM college at Nalhar. Photo: Sabah Gurmat

Communal violence leading to the state identifying “perpetrators” of the violence and then using bulldozers as “ilaaj” (treatment) to demolish their houses. All these circumstances have lead to India becoming a land with rule by law as opposed to rule of law. A.V. Dicey was a constitutional jurist in 18th century Britain who popularised the phrase ‘rule of law’. The rule indicates that no one is above the law and that the law should be equally applied to everyone. The primary purpose behind the equal application of the law is to cut down on the influence of arbitrary power on it. This purpose, conversely, gets defeated if the law is applied unequally and selectively by those in power. 

Dicey’s rule of law talked about a system of governance led by the concerns and issues faced by the citizens. The state would come in and use the law to find solutions to those problems. However, instances like the current demolition drives tell a different story. The rule of law is very clearly being changed to rule by law here because it seems the government and a few state actors are openly using the law to punish whoever they want. 

This is also a violation of the principles of constitutionalism which seek to limit the powers of the state and prevent the arbitrary application of law.

Zoning laws and laws related to city planning have always been accused of being anti-poor. They are the colonial remnants of the past where the colonial government would frequently raze over the native’s houses in order to build proper and “clean” neighbourhoods

The current case is a stark example of the continuing colonial legacy where houses in affluent neighbourhoods are rarely targeted for non-compliance with zoning laws but poor households in mostly Muslim neighbourhoods often find themselves being targeted for such non-compliance.

Demolitions as state-sponsored punishment 

Now that we have assessed the problem, we must also learn to phrase and identify it in constitutional terms. The issue with that is that the constitutional courts when dealing with issues of illegal demolitions often treat them as individual cases and not as a matter of informal policy used by the state. 

For the problem to be fully recognised, we must learn to recognise demolition drives targeting neighbourhoods right after some clash or violence as a state-sponsored punishment. 

This is where legal scholar Dr. Gautam Bhatia looks at the ‘Doctrine of Unconstitutional Affairs’ which originated in Columbia and was later adopted by Brazil. As per a definition,

“The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution,” Bhatia says. 

Also read: Demolitions as Tools of ‘Collective Punishment’: Examining Instances in India and Israel

The doctrine focuses on the structural and systemic violation of fundamental rights. Using the doctrine, the courts will have to analyse and freely explore the patterns that lead to the bulldozing of houses. 

The systemic nature of these violations will then be scrutinised explicitly instead of an individual assessment of demolitions that views these incidents in Delhi (2022) and Haryana (2023) as isolated from each other.

The courts must step up to the challenge and learn to identify the problem of state sanctioned punishment before dealing with it. The religious profiling and gentrification of neighbourhoods being done under the cover of zoning laws and city planning will have to be talked about explicitly. This may be the only way to prevent the active ghettoization of marginalised communities and the gatekeeping of neighbourhoods around us. 

If we are to uphold values of rule of law and constitutionalism, we must also curb the power of the state to arbitrarily disrupt the lives of those who it considers to be “guilty”. 

Varishtha Singh is a student of law at O.P. Jindal University. 

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